Effect on people in need of protection
The consequences of the visa cancellations regime
On 10 December 2014, Parliament passed the Migration Amendment (Character Test and Visa Cancellation) Act (2014 Act). The Act expanded the powers of the government to cancel visas, including through extension of the power under s 501 of the Migration Act to cancel visas on ‘character’ grounds, including because of past convictions.
The Refugee Council of Australia opposed the passage of this Act in its submission to the Senate Legal and Constitutional Affairs Committee, stating:
In particular, we believe that the Bill would allow visas to be cancelled unjustly or unnecessarily, potentially resulting in prolonged indefinite detention; provide the Minister with an inappropriate level of discretion to refuse or cancel visas and overturn decisions of tribunals; and permit sharing of sensitive information without due regard for privacy concerns. We also question the need for the proposed changes given that the Minister already has considerable existing powers to cancel visas under the Migration Act 1958.
We and other submitters, including the Australian Human Rights Commission, raised the following concerns:
- The very real risk of prolonged indefinite detention, especially in relation to refugees who cannot be removed to their country of origin due to the risk that they may face persecution or other forms of serious harm in their country of origin, and stateless people who have no countrywhich is obliged to accept them.
- The mandatory nature of the visa cancellation powers, which significantly decreases the capacity of the system to consider the individual circumstances of a case before a person is detained.
- The very low thresholds for visa cancellation, which trigger visa cancellations even in the absence of a real risk to the community, and
- The continued trend towards increasing the personal discretionary powers of the Minister, including to reverse carefully made decisions by merits review tribunals.
Particular effect on people in need of protection
For refugees and people seeking asylum, the visa cancellations regime has more profound implications. People in this situation are highly likely to have significant health issues, because of past persecution and because of punitive asylum policies. Many people seeking asylum are likely to have already experienced prolonged indefinite detention at the hands of the executive. They are less likely to have strong support networks or access to good legal advice. They are also likely to be disadvantaged because they are less likely to have the advanced English skills required to navigate the complex process.
We also observe that s 501(3A) requires mandatory cancellation of a visa where a person has committed an offence in, or while or after escaping immigration detention. This is true no matter how trivial the offence may be. This disproportionately punishes those in immigration detention, including people seeking asylum.
Returning refugees and people seeking asylum to their country of origin would be a breach of the Australian Government’s international non-refoulement obligations. We note, however, that they could be removed in breach of those obligations as contemplated by s 197C of the Migration Act.
Ministerial Direction No. 65 guides decision-makers exercising the powers under s 501. It includes a list of primary and ‘other’ considerations for them to consider. International nonrefoulement obligations are not considered primary considerations, but only ‘other’ considerations. The Direction expressly states that the existence of such obligations does not preclude a person from having their visa cancelled, because Australia will not remove them to a country in respect of whom the non-refoulement obligation exists.
The Direction also provides that, if a person raises concerns about refoulement during the process, it is unnecessary to determine if those obligations are owed because a person can apply for a protection visa under s 501E. This does not apply if the visa being cancelled is a protection visa, because they are barred from making another application for a protection visa under the Migration Act. The decision-maker is required instead to seek an international treaty obligations assessment (ITOA) because of the risk of indefinite detention. Nevertheless, the Direction only requires a careful assessment of those obligations, and it is clear from the terms of the Direction that a person could validly have their visa cancelled and remain in indefinite detention as a consequence.
An international treaty obligations assessment (ITOA) is a non-statutory process, conducted by a departmental officer. No interview is required in this process and the safeguards afforded in a statutory protection process, including access to merits review of this decision, do not apply. The Full Federal Court, however, has determined that procedural fairness does apply.
Since the enactment of the 2014 Act, the Federal Court has considered a number of cases involving potential non-refoulement obligations. In general, the Court has sustained the general position indicated in the Direction, so that the legal consequences of indefinite detention must be considered only where the person cannot apply for a protection visa.
Numbers of people affected
What we feared in 2014 has come to pass. There has been an explosive growth in s 501 cancellations, as is illustrated by the Department of Home Affair’s graph.
There has also been a comparable increase in recent years of people on protection or refugee visas whose visas have been cancelled under s 501. While fewer than five people on such visas had their visas cancelled under s 501 in the years before 2014-2015, those numbers have now risen considerably.
We also note that cancellations of visas under other grounds of the Migration Act for refugees have increased significantly during this period as well.
As at 28 February 2018, there were 124 people whose refugee or protection visas had been cancelled (on any of the available grounds) in held detention facilities. This would appear to amount to a large majority of those whose visas have been cancelled overall, indicating that they are being detained for disproportionately longer. Including those with bridging visas E (typically given to those seeking asylum who have come by boat), there were 166 refugees or people seeking asylum in held or community detention as a result of a visa cancellation.
These 166 people are a very significant proportion of the 488 people overall in detention at 28 February 2018 as a result of a s 501 visa cancellation. According to the Department of Home Affairs, from July to 30 September 2017 the average annualised cost of one person being held in immigration detention in Australia is $346,178 (excluding departmental operational capital expenditure).
Time spent in detention
For all people whose visas have been mandatorily cancelled under s 501, the average time spent in detention appears to be increasing significantly. On 29 February 2016, those waiting for a decision on revocation had been waiting for an average of 153 days in detention. On 17 October 2016, they spent on average 274 days in detention. This increased to 298 days by 17 March 2017.
The average time people seeking asylum or refugees had spent in detention was even longer, at an extraordinary 416 days.This is likely to be caused by the fact that such people cannot be returned to their country of origin. The result is that these people face prolonged and indefinite detention.
Non-refoulement obligations should preclude visa cancellation
If non-refoulement obligations are owed (whether or not a person has a refugee or protection visa that is cancelled), then the legal consequence is that the person remains indefinitely detained. This cannot serve any effective purpose in respect of deportation or removal. The purpose of protection of the community, including general and specific deterrence, has already been considered carefully through the process of criminal sentencing.
Therefore, detention of a person who is owed non-refoulement obligations serves no legitimate purpose. The perverse consequence is that, in the name of respecting its legal nonrefoulement obligations, the Australian Government is also in serious breach of other important international legal obligations.
Most obviously, indefinite detention in these circumstances is a flagrant breach of Article 9 of the International Covenant on Civil and Political Rights (ICCPR), protecting against arbitrary deprivations of liberty. The UN Human Rights Committee has addressed this issue explicitly in General Comment No. 35:
When a criminal sentence includes a punitive period followed by a nonpunitive period intended to protect the safety of other individuals, then once the punitive term of imprisonment has been served, to avoid arbitrariness the additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of committing similar crimes in the future. States should only use such detention as a last resort, and regular periodic reviews by an independent body must be assured to decide whether continued detention is justified. State parties must exercise caution and provide appropriate guarantees in evaluating future dangers. The conditions in such detention must be distinct from the conditions for convicted prisoners serving a punitive sentence and must be aimed at the detainees’ rehabilitation and reintegration into society. If a prisoner has fully served the sentence imposed at the time of conviction, articles 9 and 15 prohibit a retroactive increase in sentence, and a State party may not circumvent this prohibition by imposing a detention that is equivalent to penal imprisonment under the label of civil detention
The consequence of breaching Article 9 was clearly pointed out by the Australian Human Rights Commission in its submission on the 2014 Act, along with other likely breaches of our obligations in respect of family life and the best interests of the children.